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MS issues take-down to Lindows, redefines ‘guilt’

The more you spend, the more innocent you must be...

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Microsoft has risen to Lindows.com's MSFreePC bait and responded with a take-down notice which harumphs at some considerable length about fraudulent claims, invalid claims, mischaracterisations and the starving schoolchildren of California. And as was all too predictable, Lindows.com CEO Michael Robertson has shot back with a ringing paean of freedom whose bottom line is 'see you in court.' Again.

We're conscious we may have just mischaracterised the Microsoft take-down letter by making it sound far more exciting than it is; trust us, it's very dull lawyerspeak and you really don't want to go there. The gist of the pitch seems to be that MSFReePC.com is encouraging people to submit fraudulent claims in invalid format via the Microsoft antitrust settlement with the State of California, and "misleads the public and encourages class members to submit improper fraudulent claims that will be denied by the Settlement Claims Administrator." Fraudulent claims "if approved, will take settlement benefits away from legitimate class members and from California's public schools, which will receive vouchers worth two-thirds of any unclaimed settlement funds. The http://www.msfreepc.com website recommends procedures that will lead consumers to file improper claims that will be denied."

You may like us be experiencing severe disorientation if you tried to follow the logic of that one; are they arguing the claims won't work, or that they will work and therefore will steal money from the starving children? Both, no doubt, but if you start trying to reason in lawyerthink you're just playing their game, so move on, quick.

Robertson understands this perfectly, skips lawyers and fires back an open denunciation addressed to Bill Gates:

"I am surprised at some of your objections, specifically your protests that digital signatures are not valid. You seem to have no objections when digital signatures are used to attempt to build Microsoft's profits such as with MSN, Expedia, or .Net. Perhaps it would be more palatable if everyone using MSfreePC also got a Passport account? I would also point out that Microsoft uses digital signatures to bind people to their restrictive end-user licensing agreements. It is hypocritical for Microsoft to endorse digital transactions to bolster your business, but resist them whenever it may negatively impact your bottomline.

"It's also shameful that such a wealthy company uses public schools as a smokescreen to hide your true motivations which is to reduce the payout Microsoft has to perform. As you are aware, Microsoft benefits greatly if consumers do not submit claims or drop-out anywhere in the laborious process. One-third of all unclaimed dollars are refunded back to Microsoft. One-third of unclaimed dollars are required by schools to be spent on software which, given Microsoft enormous market share, means most of those dollars will simply circle back to Microsoft. The remaining one-third can be spent on hardware which even then will likely come with Microsoft software further reducing the dollars Microsoft will be paying out. If you have genuine concern for California schools, then why not give 100% of unclaimed monies to schools in cash for even non-technology needs of which there are many? This would clearly demonstrate that the settlement is not designed to minimize the amount of money Microsoft must pay."

If you can't raise a cheer as Michael twirls his flashing sword in the sunlight of truth and freedom then you must have a heart of stone. Well, maybe. Robertson has lawyers too, and however much he argues the moral case, they're sooner or later going to have to argue against Microsoft's legal case, which is likely to be stronger than Microsoft's moral one (not, you might reckon, that this is generally a tough challenge for The Beast's lawyers).

This, we think, is highlighted by a most excellent footnote to the Microsoft take-down, and as it's likely to pass largely unremarked, we propose to remark it for you. It's about the definition of guilt, and provides what we surmise is some form of framework legal underpinning for Microsoft execs to continue to characterise themselves as persons of high integrity working for a spotlessly clean and wholly innocent company.

'Guilty' is something Bill Gates finds even harder to say than 'Linux' or 'Steve Jobs.' But that's OK, because it's one of the things we have lawyers for.

Writes Robert A Rosenfeld: "the website's reference to the Department of Justice action against Microsoft suggests incorrectly that the settlement in this case is somehow based on the findings of liability in the Department of Justice action against Microsoft. There has been no determination of wrongful conduct, guilt or liability in the Settlement. Moreover, the website's description of the Department of Justice action itself is inaccurate. The website incorrectly states that Microsoft was 'found guilty of antitrust violations' in the Department of Justice case. The Department of Justice action was a civil proceeding, and the findings of liability in that action do not constitute criminal convictions or findings of 'guilt.'"

So in California's case Microsoft is not guilty of anything, and as it happens, it seems not to have been guilty in the DoJ matter either. Now, you may think it queer that Microsoft has over the years given substantial piles of money to all sorts of people who've used the legal process to accuse it of a wide range of misdeeds, yet has emerged entirely innocent, with "no determination of wrongful conduct, guilt or liability" attaching to it. You may also think it most peculiar that several judges at several levels in the process in the DoJ matter seemed pretty determined that Microsoft had been up to something, but that this amounts to nothing more than "findings of liability."

"Guilt?" Nope, we haven't heard of it, that's what we have lawyers for. To us at The Register, this seems not entirely satisfactory. Should we campaign against the lawyerly view of guilt and devise a scale with which to tag otherwise inexplicable 'donations' (e.g. $500 millon, guilty as hell, $1 billion, The Devil/eats babies)? Or should we start a campaign to stop Microsoft stupidly sullying its reputation by giving people 'go away' money, and insist that it fights all actions to the finish, until it emerges without a stain on its character? Ah, decisions, decisions... ®

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